Guindon v. Pritzker

United States District Court, D. Columbia.

March 26, 2014

KEITH GUINDON, et al., Plaintiffs,v.PENNY SUE PRITZKER, in her official capacity as Secretary of the United States Department of Commerce; NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION; and NATIONAL MARINE FISHERIES SERVICE, Defendants, and COASTAL CONSERVATION ASSOCIATION, Defendant-Intervenor

For PENNY SUE PRITZKER, in her official capacity as Secretary of the United States Department of Commerce, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL MARINE FISHERIES SERVICE, Defendants: Mark Arthur Brown , Sr., LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Wildlife & Marine Resources Section, Washington, DC; Joanna K. Brinkman, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

This case concerns management of the red snapper fishery in the Gulf of Mexico. The responsibility of managing the fishery lies with the Secretary of Commerce (" Secretary), through the National Marine Fisheries Service (NMFS), a sub-agency of the National Oceanic and Atmospheric Administration (NOAA). Plaintiffs are commercial fishermen challenging three NMFS regulations that set quotas and fishing season lengths for the recreational sector of the fishery. Plaintiffs bring claims under the Magnuson-Stevens Fishery Conservation and Management Act (" MSA" ), 16 U.S.C. § § 1801-1884, the Administrative

Congress enacted the MSA " to conserve and manage the fishery resources found off the coasts of the United States," " to promote domestic commercial and recreational fishing under sound conservation and management principles," and " to provide for the preparation and implementation, in accordance with national standards, of fishery management plans which will achieve and maintain, on a continuing basis, the optimum yield from each fishery." 16 U.S.C. § 1801(b). As a matter of declared policy, Congress sought " to assure that the national fishery conservation and management program utilizes, and is based upon, the best scientific information available." Id. § 1801(c)(3).

The MSA divides the country into eight regions, and establishes a council in each region to manage the region's marine fisheries. See id. § 1852. Each regional council must prepare a fishery management plan (hereinafter " FMP" ) for each fishery that falls under its authority, along with any amendments to the FMP that are necessary from time to time. Id. § 1852(h)(1). The councils submit FMPs, FMP amendments, and proposed regulations to the Secretary, who reviews the submissions for consistency with the MSA and other applicable laws. Id. § 1854(a). The Secretary, acting through NMFS, must approve, disapprove, or partially approve the submission within 30 days. Id. Proposals submitted by the Council to the Secretary are also called " framework actions," in that they provide a framework from which the Secretary may issue one or more implementing regulations.

1. National Standards

The legal framework Congress established to direct the management of fish stocks is of necessity multifaceted, specific, and complex. To accomplish the overall goals of the MSA, Congress set forth ten " national standards for fishery conservation and management" at the beginning of the statute. Id. § 1851. Three are relevant to this action:

Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry. Id. § 1851(a)(1) (" National Standard 1" ).

Conservation and management measures shall be based upon the best scientific information available. Id. § 1851(a)(2) (" National Standard 2" ).

If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges. Id. § 1851(a)(4) (" National Standard 4" )

FMPs and FMP amendments must conform to the National Standards. See id. § 1851(a). Any proposed regulations must conform to the National Standards and to the FMP. Id. § § 1851(a), 1854(b)(1).

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2. Other Relevant MSA Provisions

In addition to the National Standards, the MSA contains two other requirements relevant to this action. Section 303(a)(15) of the MSA requires that every FMP " establish a mechanism for specifying annual catch limits in the plan...implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability." Id. § 1853(a)(15). Congress added this requirement in 2007. See Pub. L. No. 109-479, § 104(a)(10), 120 Stat 3575, 3584 (2007).

Section 407(d), an MSA provision specific to the Gulf of Mexico red snapper fishery, requires that any FMP, FMP amendment, or implementing regulation must contain conservation and management measures that " establish separate quotas for recreational fishing...and commercial fishing that, when reached, result in a prohibition on the retention of fish caught during recreational fishing and commercial fishing, respectively, for the remainder of the fishing year." 16 U.S.C. § 1883(d)(1). Congress added this provision as part of the Sustainable Fisheries Act of 1996. See Pub. L. 104-297, § 207(b), 110 Stat. 3559, 3614 (1996).

It also bears noting that states manage their own waters, and do not always conform to federal rules concerning season length, size limits, or bag limits (the number of fish a fisherman can catch and keep per day). State regulations thus may affect the federal management scheme.

3. The Secretary's Advisory Guidelines

The Secretary has promulgated various " advisory guidelines" that do not have the force and effect of law but are intended to assist regional councils in developing FMPs. See id. § 1851(b); 50 C.F.R. § § 600.305-600.355. These guidelines flesh out and explicate the National Standards set forth in the MSA. For purposes of this case, the most relevant guidelines are the ones that explain the statutory objective, expressed in National Standard 1, of " prevent[ing] overfishing while achieving, on a continuing basis, the optimum yield." 16 U.S.C. § 1851(a)(1); 50 C.F.R. § 600.310.

4. Catch Limit Terminology

The Secretary balances the twin goals of National Standard 1 -- preventing overfishing and achieving optimum yield -- through a system of catch limits. The guidelines establish a set of " reference points" for catch limits, starting with the absolute maximum that should be harvested and working down from there. 50 C.F.R. § 600.310(b)(2)(iv). Each reference point uses specific terms and phrases that, for clarity, the Court sets out as follows:

Maximum Sustainable Yield (MSY):

MSY is the guiding reference point and the " basis for fishery management." Id. § 600.310(b)(2)(i). MSY is the largest catch that can be taken under prevailing environmental conditions, id. § 600.310(e)(1)(i)(A), and it relates directly to the concept of " overfishing."

Overfishing:

" Overfishing" occurs when a stock of fish has a level of fishing mortality or annual total catch that jeopardizes the capacity of the stock to produce the MSY on a continuing basis. Id. § 600.310(e)(2)(i)(B).

Overfishing Limit (OFL):

The OFL is the catch level above which overfishing occurs. Id. § 600.310(e)(2)(i)(D). A regional council's Scientific and Statistical Committee (SSC) sets the OFL each year. The OFL represents the upper boundary in any consideration of catch limits. However, catch limits are not automatically set at the OFL. NMFS also takes into account " scientific uncertainty" and " management uncertainty."

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Scientific Uncertainty:

" Scientific uncertainty" refers to the possibility of error in estimating biomass, mortality rates, and other factors separate from the government's role in fishery management. See id. § 600.310(f)(1).

Management Uncertainty:

" Management uncertainty" refers to uncertainty in the government's management of the fishery, including the accuracy of reported catch data and the ability of the government to constrain the catch. See id.

Acceptable Biological Catch (ABC):

ABC is an annual catch figure, set at or below the OFL, with the difference between the OFL and the ABC designed to account for scientific uncertainty in the SSC's calculation of the OFL. Id. § § 600.310(b)(2)(v)(D), 600.310(f)(2)(ii). The SSC sets both the OFL and the ABC. ABC is an expression of the amount of fish that fishermen could harvest during a particular year without overfishing the stock, with accommodation for scientific uncertainty.

Annual Catch Limit (ACL):

ACL differs from the ABC in that the ABC estimates the amount of fishing the NMFS could permit without overfishing, whereas the ACL represents the amount that the agency actually permits each year. NMFS may set the ACL at or below the ABC.

Accountability Measures (AMs):

AMs are " management controls to prevent ACLs, including sector--ACLs, from being exceeded, and to correct or mitigate overages of the ACL if they occur." Id. § 600.310(g)(1). " AMs should address and minimize both the frequency and magnitude of overages and correct the problems that caused the overage in as short a time as possible." Id. The guidelines describe two kinds of AMs: " inseason" AMs, and " AMs for when the ACL is exceeded," referred to by the parties as " postseason AMs." Id.

Inseason AMs:

Inseason AMs are AMs that the agency implements during the fishing season to constrain catch. One inseason AM, often referred to as a " buffer," involves setting the amount of permitted catch below the ACL to guard against management uncertainty. Id. § 600.310(g)(2). Other inseason AMs include closing the fishery when the ACL has been exceeded or is projected to be reached, and lowering the bag limit. Id.

Postseason AMs:

The guidelines instruct regional councils to determine as soon as possible after the end of the season whether the ACL has been exceeded. Id. 600.310(g)(3). If so, one postseason AM would be to revise the inseason AMs applicable to the next season, in order to prevent another overage. Id. Another postseason AM is an " overage adjustment," also known as a " payback" provision, where the NMFS reduces the next season's ACL to account for the overage. See id. If catch exceeds the ACL more than once in four years, the regulations provide that " the system of ACLs and AMs should be re-evaluated, and modified if necessary, to improve its performance and effectiveness." Id.

Rebuilding Plan:

A rebuilding plan is a multiyear management plan that aims to return a fishing stock to productive capacity in a certain timeframe. If a stock is subject to a rebuilding plan, postseason AMs " should include overage adjustments that reduce the ACLs in the next fishing year by the full amount of the overages, unless the best scientific information available shows that a reduced overage adjustment, or no adjustment, is needed to mitigate the effects of the overages." Id.

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Sector-ACLs and Sector AMs: ACL may be divided into sectors ( e.g. recreational or commercial). Id. § 600.310(f)(2)(iv). The guidelines specify that " if the management measures for different sectors differ in the degree of management uncertainty, then sector ACLs may be necessary so that appropriate AMs can be developed for each sector." Id. § 600.310(f)(5)(ii).

B. Management of the Gulf of Mexico Red Snapper Fishery

1. How NMFS Establishes Quotas and Sets Season Length

The Gulf of Mexico Fishery Management Council (" Council" ) is the regional council charged with managing red snapper and other reef fish species in the Gulf of Mexico. See 16 U.S.C. § 1852(e). The Council's area includes Texas, Louisiana, Mississippi, Alabama, and Florida. Id.

In managing the fishery, the Council and NMFS rely on the Southeast Data, Assessment, and Review (or " SEDAR" ) stock assessment, which is a periodic evaluation of the red snapper stock that encompasses the amount and weight of fish, spawning data, mortality rates, and other indicators related to the size and health of the fishery. See AR 1097. As SEDAR stock assessments become available, the Council uses them to set future management plans or adjust existing plans.

Each year, before the red snapper season begins, the Council receives a recommendation as to that year's Acceptable Biological Catch (ABC) from the Council's Scientific and Statistical Committee (SSC). The Council then proposes to NMFS a red snapper " quota" for the year. The recommended quota is intended to serve as the total ACL for red snapper in the Gulf of Mexico fishery.[1] Because the quotas include fish harvested in adjoining state waters, NMFS must take those state harvests into account in managing the Gulf of Mexico red snapper fishery. See 50 C.F.R. § 622.8(a). Pursuant to Section 407(d) of the MSA, the fishery is subdivided into recreational and commercial sectors, with separate quotas for each. Thus, the Council will also specify the allocation of the total quota between the commercial and recreational sectors. Currently, the FMP specifies that the commercial sector receives 51 percent of the quota and the recreational sector receives 49 percent. AR 5074.

NMFS manages the commercial and recreational sectors differently. In the commercial sector, each participant receives an Individual Fishing Quota (" IFQ" ), which entitles that participant to a fixed, specific portion of the annual commercial catch. See 50 C.F.R. § 622.21. Commercial vessels must install geographical monitoring systems and may only sell their catch to authorized dealers. See id. § § 622.28 (" Vessel Monitoring Systems" ), 622.40 (" Restrictions on Sale/Purchase" ). Since 2007, these management measures have assured that the commercial sector does not exceed its quota. AR 4782. In fact, as the 2010 Amendment to the Reef Fish FMP observed, " there is no possibility of a quota overrun for the commercial sector." AR 369.

By contrast, NMFS manages the recreational sector using only size limits, bag limits, and length of season. The only AM currently in place for the recreational sector

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is in-season closure of the fishery. See 78 FR 17882, 17883 (Mar. 25, 2013) (" The in-season closures are the accountability measures for the recreational red snapper sector." ). NMFS estimates in advance how long it will take for the recreational sector to harvest its quota, based on historical data, then sets the season length according to that projection. AR 4262.

The primary data source for estimating recreational " landings" (total weight of red snapper caught) is the Marine Recreational Information Program (MRIP).[2] NMFS implemented MRIP several years ago in an effort to improve the quality of the agency's landings estimates. AR 4665. MRIP data are collected in two-month " waves," with data available 45 days after the wave ends. AR 761. MRIP produces an estimate of red snapper landings through a combination of " dockside intercepts" (referred to as " landings data" ) and phone surveys (referred to as " effort data" ). AR 4714.

The dockside intercept program, known as the Access Point Angler Intercept Survey (APAIS), involves communicating with recreational fishermen when they return from fishing trips. AR 5073. Of particular relevance to this case is an alteration to the APAIS sampling design that NMFS made in March 2013. See AR 4999. The change allowed NMFS to capture data from fishing trips at time intervals during the day that the agency had not previously sampled. AR 5000.

2. Recent History of Recreational Sector Management

Red snapper stock is managed under the Reef Fish Fishery Management Plan (" Reef Fish FMP" ), first implemented by the Secretary in 1984. AR 6. At that time the agency had already observed declines in the adult population of red snapper. Id. The Council first amended the Reef Fish FMP in 1990 (" Amendment 1" ), with the goal of stabilizing long-term population levels by 2000. AR 371. Red snapper is currently designated as " overfished," and is subject to a rebuilding plan.[3] Over time NMFS has extended the target date to complete rebuilding of the stock. AR 368. Currently the target is 2032. Id.

Amendment 1 to the Reef Fish FMP required that the annual catch be allocated between recreational and commercial sectors based on historical percentages. AR 12. The regulations implementing Amendment 1 set the allocation at 51 percent commercial and 49 recreational, an allocation that survives to the present. See AR 5074.

Prior to 1997, the Secretary permitted recreational red snapper fishing year-round, with catch levels constrained only by bag and size limits. AR 4346. From 1997 to 1999, NMFS used in-season monitoring, along with data from prior seasons, to project when the quota would be reached and when to close the season. AR 4346. " In-season monitoring" meant that, during the fishing season, an NMFS " quota monitoring team" tracked available landings data and combined that data with

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past patterns to project when recreational sector would reach its quota. Id. The agency would announce the closure date several weeks in advance. Id.

For the 2000 season NMFS abandoned its in-season quota monitoring operation and began setting fixed season lengths in advance, based only on projections of when the quota would be reached. Id.[4] In 2000, NMFS set the recreational quota at 4.47 million pounds, with a 2-fish bag limit and a season lasting from April 21 to October 31. AR 4347. The quota, bag limit, and season length established in 2000 remained in effect through 2007. Id ...

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